Telogram Limited/ H L Legal Solicitors

[Cov192]

Cap Quest have finally come up with a reponse to my letter sent 09 Sept , dated 02 Oct.

 

All they have sent is copies of his credit card statements from MBNA for from 08 Oct 08 to 26 June 09 with a covering letter.

 

The cover letter states " Further to your recent correspondence.

 

Please find enclosed documents as requested, If you are not currently repaying this account on an agreed arrangement, it is now imperative that you deal with this matter immediately by sending your payment direct to: PO Box 396 Fleet etc ............... along with various other payment methods.

 

Also states that " We have placed your account on hold until 11 October , if we do not receive contact from you by this date yoyr account will be passed to our collections department for further action"

 

I can see no signature from my father on any documentation they have sent me and no reference at all to a CCA.

 

Any suggestions on what next steps (if any) should be taken or requested?

[cerberusalert]

I'd be tempted to send them Scots letter below & see what their response is;

 

Re: my request under the Consumer Credit Act 1974

 

Thank you for your recent letter sent to me, the contents of which are noted. I appreciate your quick response to my original letter. However, the reply received by me does not fulfil your requirements under the Consumer Credit Act 1974.

 

The Act demands that I be supplied with a true copy of any properly executed credit agreement that exists in relation to the above account. I may ask for this on demand providing that a fee of £1.00 is paid. This fee was sent with my original letter.

 

My request remains outstanding. The items you sent in your reply, does not constitute a true copy of any credit agreement that may or may not have been signed by me on the opening of this account. It neither confirms that I am liable for any alleged debt to you, nor gives me any chance to evaluate whether any original agreement was ‘properly executed’.

 

I still require you to send me a true copy of the original credit agreement that you allege exists. As you will know, under the Consumer Credit Act 1974, a judge is not permitted to make any enforcement order unless the creditor can provide a true signed copy of the original credit agreement. This means that unless you can produce such an agreement, this alleged debt is not enforceable in law.

 

You had until XX/XX/2008 to provide me with the true copy I requested. You are now in default of my request. Any account I hold with you is now in legal dispute. Whilst the account remains in dispute, you are not permitted to ask for any payment, nor am I obliged to offer any payment to you. Furthermore, whilst the dispute remains, you are not entitled to charge any interest on the account, nor make any further charges to the account. Additionally, you are not entitled to register any information on this account with any credit reference agency.

 

To register information with a credit reference agency, you must have written consent from the customer to collate and share such information. This consent is given in the form of a signed credit agreement, so until you produce such an agreement, you may not do this.

 

The requirement for consent to share data is a clear requirement of the Data Protection Act 1998. any such attempts to share my data without my consent will be met with a complaint to the Information Commissioners Office

 

To sum up, I will not be making any further payments to you until you provide me with the document I have requested. Whilst you remain in default of my request, you are not permitted to take any action against this account. This includes adding further charges and passing any information to the credit reference agencies.

 

Should you not have any signed credit agreement in relation to this alleged debt, please confirm this in writing to me.

 

 

I look forward to your reply.

 

Yours faithfully

Print name do not sign

 

**amend to suit your circumstances.**

[Cov192]

Hi ,

 

I sent Scott's letter as suggested as CapQuest have now come back with another standard response dated 12 October.

 

" We thank you for your recent correspondence. We can confirm that we have requested a copy of the agreement from MBNA Europe Bank. We will forward this once we receive it "

 

Can you suggest what action to take next? CapQuest are well outside the dates in which they should have provided this information but what can they do next assuming they can obtain a copy of this info? Surely this must have been provided to them when they purchased the debt??

 

All suggestions and help greatly accepted

[gustavius rex]

l have had a number of vultures after me and who have tried the same tactics. After the CCA and their inability to provide the required documentation, they continued to harass me with demands, solicitors threats of court action and finally offer of a settlement @ 50% discount of the original debt. l ignored all and everything they did and by now they have mostly given up. Be sure that they do not have any original documents and they will not be able to provide any copies of the original documents either. Sit back and relax, nothing is going to happen, except that the hyenas who bought the debt for a tenner will continue to hunt you for a while, but, will eventually give up. They have not got half a leg to stand on and they know it, but, will, as the opportunistic creatures they are, follow you until they are sure your not going to give up. But, nothing real will happen.

Gustavius

[Cov192]

Unfortunately Capquest have now responded and provided a copy of the signed CCA. This was signed in Nov 1993 on an agreement with Bank Of Scotland who I assume MBNA purchased the card accounts from.

 

Obviously my father does not have the funds to make any payment as was fully explained and agreed by MBNA so I'm not sure as to what can be done next.

 

The CCA information did take longer than the 12+2 days.

 

Has anybody any suggestions on what course of action is available to us as I guess these people are not going to go away?

[cerberusalert]

Can you scan the agreement and post it up after deleting personal details. The agreement has to contain certain prescribed terms to be enforceable.

[Cov192]

Hi

 

I have finally managed to include the CCA - look forward to your guidance.

 

 

[cerberusalert]

It's too small to read, but I can just make out that it's an application form. Does it contain %APR, credit limit, repayment terms etc? See; http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/105315-my-agreement-enforceable-useful.html

[Cov192]

Apologies but I couldn't get the image any larger !!

 

This is in fact an application form on which there is no reference to %APR, credit limit, repayment terms .... although it does state in the Principal Cardholders Application section "Please issue a Bank of Scotland Affinity Mastercard to me. I confirm that the information given is true and complete and I authorise you irrevocably to disclose any information to any credit reference bureau or third party for any purpose connected with the Bank's business and to make such enquiries as you consider necessary (including a request for a reference from my bank) in connection with this application or Credit Agreement. I accept and agree to be bound by the Bank of Scotland Affinity Mastercard Conditions of Use(as set out overleaf and as amended from time to time)" . I have only received a photocopy of the front of this agreement so no idea what may or may not have been detailed overleaf.

[cerberusalert]

Send them this;

 

Dear Sirs,

 

Account no xxxxxxxxxxxxxx

 

 

Re: my request under the Consumer Credit Act 1974

 

This account is in Dispute .

 

On xx/xx/2009 I wrote to xxxxxxxxx requesting that xxxxxxx supply me a true copy of the executed credit agreement for this account.

In response to this request I was supplied a mere application form which did not comply with the requirements of the Consumer Credit Act 1974.

 

The document sent purporting to be a credit agreement does not contain any of the prescribed terms as required by section 60(1) Consumer Credit Act 1974. The Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) made under the authority of the “1974 Act” sets out what the prescribed terms are, I refer you to Schedule 6 Column 2 of SI 1983/1553 for the definition of what is required. Suffice to say none of the terms are present in the document

 

Since this document does not contain the required prescribed terms it is rendered unenforceable by s127 (3) consumer Credit Act 1974, which states

 

127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

 

This situation is backed by case law from the Lords of Appeal in Ordinary (House of Lords) the highest court in the land. Your attention is drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the Consumer Credit Act 1974 the agreement cannot be enforced.

 

In addition should you continue to pursue me for this debt you will be in breach of the OFT guidelines, I draw your attention to the Office of Fair Trading’s guidance on debt collection

The OFT guidance which was issued July 2003 (updated December 2006) relating to debt collections and what the OFT considers unfair, I refer to page 5 of the guidance which states;

 

2.6 Examples of unfair practices are as follows:

 

h. Ignoring and/or disregarding claims that debts have been settled or are disputed and continuing to make unjustified demands for payment.

 

I require you to produce a compliant copy of my credit agreement to confirm I am liable to you or any organisation, which you represent for this alleged debt, if you cannot do so I require written clarification that this is the case. Should you ignore this request I will report you to the Office of Fair Trading to consider your suitability to hold a credit licence in addition to a complaint to Trading Standards, as you will be in breach of the Administration of Justice Act 1970 section 40

 

Since the agreement is unenforceable and the default notice is non compliant, it would be in everyone’s interest to consider the matter closed and for your client to write the debt off. I suggest you give serious consideration to this as any attempt of litigation will be vigorously defended and I will counter claim for all quantifiable damages

 

I respectfully request a response to this letter in 14 days

 

 

I trust this out lines the situation

Print name do not sign

[Cov192]

Hi

 

Thank you again for your assistance in this but can you please confirm that I should be adding CapQuest & MBNA in paragraph 2?

 

As the information that CapQuest has sent is in fact a copy of the application form does this mean that the debt is not enforceable as they have failed to provide the relevant documentation?

[cerberusalert]

You don't have to put either in.

 

Yes it's unenforceable as it doesn't contain the prescribed terms.

[Cov192]

And finally if a true copy of this application form is sent (both sides) and the reverse does in fact show APR% and payment terms would this then become enforceable?

[cerberusalert]

Yes it would be enforceable, but it's not unknown for creditors to supply something which purports to be the reverse of the signed document when in fact it isn't.

[Cov192]

Thanks once again for your help.

 

Should anything arrive from CapQuest I'll post it up but presume I could demand to see the original document/application form to ensure it's legitimacy?